Súdny dvor Európskej únie·21.4.1994

C-322/93

ECLI:EU:C:1994:165

Súd: Súdny dvor Európskej únie
IČS: 61993CC0322
Zdroj: eur-lex.europa.eu ↗

PEUGEOT v COMMISSION

OPINION OF ADVOCATE GENERAL LENZ delivered on 21 April 1994 *

Mr President, tract of sale is made in each case between the Members of the Court, motor vehicle dealer, on the one hand, and the consumer (represented by Eco System), on the other.

A — Facts

When the motor vehicle is purchased, Eco System exploits in the interest of its cus 1. These proceedings concern the appeal by tomer the price differences which exist in the Automobiles Peugeot SA and Peugeot SA individual Member States. The collection of against the judgment of the Court of First the vehicle purchased in another Member Instance of 22 April 1993 in Case T-9/92. 1 State and the completion of the formalities In that judgment the Court of First Instance necessary for its importation are carried out dismissed an action brought by those two by Eco System. The remuneration for those undertakings under Article 173 of the EC services consists of a commission calculated Treaty contesting the Commission decision on the basis of the purchase price. of 4 December 1991 in the Eco System/ Peugeot case. 2

2. The Commission decision had been Motor vehicles under the Peugeot and Talbot adopted following a complaint by Eco Sys trade mark, which are manufactured and sold tem. That company is an undertaking estab by the Peugeot group of companies, make up lished in France, which procures motor a significant proportion of the vehicles vehicles for its customers. According to the obtained by Eco System for its customers. findings of the Court of First Instance it offers its services in France to consumers who are interested in acquiring a motor vehicle, and advertises those services in the media. Eco System requires each interested purchaser to grant it a written authority to acquire a particular motor vehicle. The con 3. Automobiles Peugeot SA, a subsidiary of Peugeot SA, sells its motor vehicles in the Community through authorized dealers. * Original language: German. That distribution system complies with the 1 — Peugeot v Commission [1993] ECR II-493. 2 — OJ 1992 L 66, p. 1. requirements of Commission Regulation

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(EEC) No 123/85 of 12 December 1984 on Decision). The Commission required Peu the application of Article 85(3) of the Treaty geot SA and Automobiles Peugeot SA to to certain categories of motor vehicle distri send, within two months, a new circular can bution and servicing agreements 3 and is celling that of 9 May 1989 and thereafter to accordingly exempt from the prohibition in refrain from any such infringements against Article 85(1) of the EC Treaty. Article 85 (Article 2 of the Decision). If the parties concerned failed to comply with that obligation, the benefit of the application of Regulation No 123/85 would be withdrawn from the distribution system (Article 3 of the Decision). 4. On 9 May 1989 Peugeot SA sent a circu lar to all authorized dealers in France, Bel gium and Luxembourg, in which it required them to stop their deliveries to Eco System and not to accept any further orders for new Peugeot or Talbot vehicles from that com pany. The text of that circular had been sent to the Commission a short time previously. 7. On 10 February 1992 Peugeot Automo biles SA and Peugeot SA brought an action before the Court of First Instance contesting that Commission decision. In their applica tion the applicants asked the Court to annul 5. The Commission then initiated a proceed the decision and to declare that the circular ing under Article 85 of the Treaty. In the of 9 May 1989 was compatible with Regula course of that proceeding the Commission tion No 123/85 and with a notice relating to adopted provisional measures against Auto it (Commission Notice concerning Regula mobiles Peugeot SA and Peugeot SA on 26 tion (EEC) No 123/85 of 12 Decem March 1990. The action brought against that ber 1984, 5 hereinafter 'the Notice')· The decision was dismissed by the Court of First judgment of 22 April 1993 dismissing that 4 Instance on 12 July 1991. application forms the subject-matter of this appeal.

6. On 4 December 1991 the Commission adopted its definitive decision in that case. It came to the conclusion that the sending of the above circular and the resultant cessation of deliveries to Eco System infringed Art 8. The appellants claim that the Court of icle 85(1) (since it constituted an agreement Justice should set aside the contested judg or a concerted practice) and was not covered ment and declare that the circular of 9 by Regulation No 123/85 (Article 1 of the May 1989 is compatible with Regulation No 123/85 and the Notice.

3 — OJ 1985 L 15, p. 16. 4 — Case T-23/90 Peugeot v Commission [1991] ECR II-653. 5 — OJ 1985 C 17, p. 4.

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9. The Commission contends that the Court 12. It is quite clear that, as BEUC has cor of Justice should dismiss the appeal and rectly pointed out, in proceedings under order the appellants to pay the costs of the Article 173 of the EC Treaty a declaration proceedings. cannot be made to the effect that a particular measure taken by an undertaking is lawful. That of course also applies with regard to the Court of Justice when it has to decide on an appeal against a judgment which was given in respect of an application under Article 10. Eco System and the Bureau Européen 173. The question thus arises of the conse des Unions de Consommateurs, a group of quences of the fact that, alongside the appli consumer associations (hereinafter 'BEUC') cation to have the contested judgment set have intervened in the proceedings in sup aside, the appellants have sought only an port of the Commission as they did at first inadmissible form of order. instance. The interveners adopt the forms of order sought by the Commission and more over contend that the Court of Justice should also order the appellants to pay the costs resulting from their intervention.

13. As far as I am aware, the Court of Jus tice has never been called on to decide that question. In my opinion it would be entirely B — Analysis justified in such a case to dismiss the appeal without more. If the appellants had sought that form of order at first instance, the Court of First Instance would have had to dismiss the application as inadmissible. An appeal Preliminary point against such a judgment of the Court of First Instance would have to be regarded as clearly unfounded within the meaning of Article 119 of the Rules of Procedure of the Court of Justice.

11. Under Article 113 of the Rules of Proce dure of the Court of Justice, an appeal is to seek, apart from the setting aside (in whole or in part) of the contested judgment, the same form of order (in whole or in part) as that sought at first instance. In this case the 14. One possibility for consideration might appellants claimed that the Court of First nevertheless be whether the Court of Justice Instance should annul the Commission deci could not remedy the abovementioned defect sion and declare the circular in question to by way of interpretation, because it is clear be lawful. However, in their appeal the from the appeal that the appellants continue appellants now merely claim that the Court to seek (also) the annulment of the Commis of Justice should (in addition to setting aside sion decision of 4 December 1991. However, the contested judgment) declare that the cir in my opinion that question does not need to cular is compatible with the abovementioned be examined further in this case. Since the provisions of Community law. problem does not yet appear to have been

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dealt with by the Court of Justice and the It is clear from the fifth recital in the pream Commission has moreover raised no objec ble to Regulation No 123/85 that in that way tion in that respect, it would not be appro it is to be made possible for the manufac priate to cause the appeal to fail as a result of turer to protect his selective distribution sys that defect alone. Moreover, it should be tem. observed that the appeal is in any case unfounded, as I shall demonstrate.

16. In the Notice the Commission states, at I.3 under the heading 'Intermediaries', that the consumer must be able to make use of Legal background the services of individuals or undertakings to assist in purchasing a new vehicle in another Member State. However, the dealer can be obliged not to supply to or through such an intermediary,

15. Before I consider the individual grounds of appeal, it is appropriate to set out the rel evant provisions in this case. Article 3(10) of Regulation No 123/85 permits the distribu 'who represents himself as an authorized tion agreement to impose an obligation on reseller of new vehicles within the contract the dealer to sell the vehicles concerned only programme or corresponding vehicles or car to such resellers who are within the distribu ries on an activity equivalent to that of a tion system. reseller'.

In each case, it is for the intermediary or the final consumer to give the dealer documen The same applies under Article 3(11) with tary evidence that the intermediary is acting regard to the obligation on a dealer: on behalf of and for the account of the con sumer.

The taking into account of the Notice and the 'to sell motor vehicles within the contract principle of legal certainty programme or corresponding goods to final consumers using the services of an interme diary only if that intermediary has prior written authority to purchase a specified motor vehicle and, as the case may be, to 17. In their first plea, the appellants com accept delivery thereof on their behalf'. plain that when the Court of First Instance

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considered the matter it failed to take the 19. It cannot therefore be said that the Notice into account and ascribed no legal Court of First Instance failed to take the value to it. The failure to take that Notice Notice into account or to attribute any legal into account prejudices legal certainty. significance to it. The appellants also admit this when they state in their appeal (on page 13) that the Court, after declining to take the Notice into account, considered Regulation No 123/85 together with the Notice, but failed to draw the (in the appellants' view) necessary inferences therefrom. Ultimately, the appellants' complaint therefore amounts 18. That ground of appeal can be rejected to an allegation that the Court did not cor immediately. The Commission and Eco Sys rectly interpret the relevant provisions. That tem correctly point out that the Court of question must be considered in conjunction First Instance did take the Notice into with the second plea in this appeal. account.

The Court began by considering Art icle 3(11) of Regulation No 123/85 (para graphs 37 to 43 of the contested judgment). It then went on to examine the Notice. In that examination the Court found initially that a notice which was intended to assist 20. I am also not convinced by the appel interpretation of a regulation could not lants' contention that the principle of legal amend the mandatory rules of that regula certainty was infringed. The appellants obvi tion (paragraph 44). In paragraph 46 the ously assume that the interpretation of Art Court expressed the view that the Notice icle 3(11) contended for by them (according could not restrict the scope of application of to which Eco System cannot be considered the regulation. It was rather the case that the to be an 'intermediary') followed directly Notice set out in more detail the conditions and obviously from the Commission's which a person had to satisfy in order to be Notice. However, that is not the case. Even regarded as an intermediary within the if one were to adopt the view that the case in meaning of Article 3(11) of Regulation point depended upon whether Eco system No 123/85. As a result, the Court concluded carried on 'an activity equivalent to that of a that it ought to consider whether Eco Sys reseller' within the meaning of that Notice, it tem had placed itself outside the scope of would still first need to be established that Article 3(11) of Regulation No 123/85 by that was actually the case. The Commission assuming risks which were characteristic of a and Eco System are correct in pointing out reseller and accordingly no longer provided that, in that context, the appellants are services, but carried on an activity equivalent wrong to rely on a letter sent to them by the to that of a reseller. That examination formed Commission on 15 July 1987. In that letter the subject-matter of the Court's subsequent the Commission quite clearly stated that it remarks (paragraphs 47 et seq.). did not share the appellants' view regarding

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the question of how Eco System's activity appellants cannot contest the lawfulness of was to be categorized. the former by referring to the latter. 8

21. In their arguments regarding the ques tion whether there has been an infringement Interpretation of Article 3(11) of Regulation of the principle of legal certainty the appel No 123/85 lants refer to the fact that it was only in July 1989 when the Commission sent them its preliminary view on the circular of 9 May 1989, which had been brought to the Commission's attention as early as 28 April 1989. There is hardly any need to point out that such an unofficial notification, made a few days before the despatch of the circular, 23. The appellants' second ground of appeal and the fact that the Commission did not is in substance that the Court of First immediately react to it, could not give rise to Instance wrongly interpreted the concept of any justified expectation that the Commis 'intermediary' within the meaning of Regula sion considered the appellants' behaviour to tion No 123/85. It is true that the appellants be lawful. refer directly only to the wording in the Notice which states that the intermediary may not carry on 'an activity equivalent to that of a reseller'. However, as the Court of First Instance correctly noted, there is no doubt that the provisions of a regulation cannot be amended by a notice. It is there 22. As the appellants have pointed out, the fore not necessary to deal in more detail with Commission published with its decision of 4 the question how such notices are to be December 1991 a 'Clarification of the activi legally classified. The arguments to that ties of motor vehicle intermediaries', which 7 effect contained in the appellants' pleadings was intended to supplement the Notice. In are therefore irrelevant to this case. the Commission's own words, the aim of that document was 'to clarify the scope of the activities of the intermediaries mentioned in [the] regulation'. The content of that 'cla rification' is based essentially on the decision of 4 December 1991. It is however not nec essary to consider the terms of that docu ment in more detail here. The Court of First Instance pointed out quite correctly that the 24. BEUC's argument that the concept of Commission decision of 4 December 1991 'activity equivalent to that of a reseller' was not based on that new notice and the ought to be rejected since there is no legal basis for it, is basically justified, but goes too far. The Notice may quite properly be used

6 — Cf. judgment in Case T-23/90, cited above, (note 4), para graph 48. 7 — OJ 1991 C 329, p. 20. 8 — Paragraph 71 of the contested judgment.

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to interpret the regulation where it is com involve advertising and the acceptance of patible with the regulation. risks inherent in any business involving the provision of services (paragraph 43).

25. The Court of First Instance came to the correct conclusion here too. It first pointed 26. The Court of First Instance then turned out that provisions of a regulation which to the relevant section of the Notice, which exempt particular agreements from the pro in its opinion related not only to Art hibition laid down in Article 85(1) of the EC icle 3(11) but also to Article 3(10) of Regula Treaty are exceptions which cannot be given tion No 123/85. It expressed the view that in a wide interpretation which would conflict order to ensure the effectiveness of Art with the aim of those provisions (para icle 3(10) — that is in order to protect the graph 37 of the contested judgment). As the distribution system against unauthorized Court found (paragraph 40), the aim of Art third parties — the Commission was entitled icle 3(11) of Regulation No 123/85 is to make to set out the conditions which an autho it possible for an intermediary to continue to rized intermediary had to satisfy in order to act, provided that there is a direct contractual fulfil the requirements of Article 3(11) (para link between the dealer and the final con graph 46 of the contested judgment). 9 sumer.

The Court of First Instance then examined The Court of First Instance then pointed out whether Eco System had assumed risks asso that Article 3(11) merely required the inter ciated with the activity of a reseller, so that it mediary to produce written authorization could be considered to have carried on an for the purchase (and as appropriate, collec activity equivalent to that of a reseller (para tion of the vehicle). It was therefore apparent graph 47). The Court first found that Eco from the wording of the provision that an System acted merely as a representative. In intermediary in possession of appropriate each case, the contracts of sale were made authorization could not be excluded from between the dealer and the customer. Eco the scope of that provision solely on the System also never acquired ownership of the basis that he was acting on a professional vehicles purchased through it (paragraph 48). basis (paragraph 41). Otherwise that provi It had not taken on any obligation under a sion would cease to have any practical effect guarantee to the customer (paragraph 49). (paragraph 42). To act as an intermediary on Since Eco System had not become owner of a professional basis could however indeed the vehicles, it had not borne the risk nor mally assumed by a reseller of having to sell the goods elsewhere if the customer were to withdraw from the transaction (para 9 — As held earlier in the judgment in Case T-23/90, cited above (footnote 4), paragraph 33. graph 50).

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By first paying the purchase price and 28. I can detect no error of law in the rea expenses incurred and then recovering them soning of the Court of First Instance. It is from the customers, Eco System had indeed moreover not particularly easy to identify granted them a short-term loan. Although what complaints the appellants have in that such a loan was not inherent in the nature of respect. Eco System has correctly pointed the authority given, it nevertheless did not out that the appeal does not identify with affect the legal characterization of the busi precision those findings of the contested ness relationship (paragraph 51). With regard judgment against which the appeal is to the risk of the customer's insolvency, the directed. However, I believe that all material Court of First Instance pointed out that in objections are covered by the following such a case Eco System did not have the observations. option normally available to a reseller of immediately disposing of the vehicle (and therefore without having to take any partic ular legal measures) (paragraph 52). With regard to the risk associated with the exchange rate, the Court found inter alia that it had not been proven that Eco System bore 29. The appellants' claim first that the Court that risk (paragraph 53). If Eco System was of First Instance considers the existence of a obliged to pay compensation to the custom written authority to be the only requirement ers in the event of the loss or damage to a which must be satisfied for a person to be vehicle in its possession, that was not regarded as an intermediary. The arguments unusual (paragraph 54). The means of calcu of the Court of First Instance, set out above, lating Eco System's remuneration was also show that that objection is unfounded. The normal for an agency contract of the type in Court correctly points out that that criterion question in this case (paragraph 55). is the only one which may be deduced from the wording of Article 3(11), and that Eco System satisfied that requirement in each case. However, it went on to examine most thoroughly whether it could nevertheless be assumed, on the basis of other factors, that Eco System could not be regarded as an intermediary within the meaning of that pro vision. 27. On the basis of those considerations, the Court of First Instance concluded that Eco System had not assumed any risk character istic of the activity of a reseller. It then exam ined the question whether Eco System had in practice exceeded the limits set by the cus tomers' authorization, and held that this had 30. It is not entirely clear from the appeal not occurred (paragraphs 57 to 60). Finally, whether the appellants wish to argue that, the Court found that the fact that Eco Sys since Eco System carried out its activities on tem had been acting for a large number of a professional basis, it could not be regarded customers did not alter the fact that the as an intermediary within the meaning of undertaking was to be regarded as an inter Regulation No 123/85. It seems to follow mediary within the meaning of Article 3(11) from a comment in the reply that the appel or Regulation No 123/85 (paragraph 61). lants do not consider that factor to be deci-

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sive. If I should be mistaken in that consumer to be able to call on the assistance impression, the appellants' argument could of intermediaries in order to acquire a not be accepted. In paragraph 42 of its judg vehicle. Article 3(11) of Regulation No 123/85 ment the Court of First Instance stated, recognizes the significance of the role of entirely correctly, that Article 3(11) would intermediaries in that area. If undertakings, be deprived of any practical effect if under whose professional activity is to assist con takings acting on a professional basis were sumers in acquiring motor vehicles from not to be accepted as intermediaries. abroad, were not to be included as interme diaries within the meaning of Article 3(11), that provision would largely be deprived on any effect.

The protection of a selective distribution system in the motor vehicle sector, which Regulation No 123/85 permits by exempting certain obligations, is intended to assist in achieving the economic advantages expected 1 from such distribution systems. 1 Experi ence shows that such protection can however also have detrimental effects on price compe 31. That argument also basically undermines tition. The sometimes considerable differ the appellants' argument that an undertaking ences in prices between the individual Mem cannot be regarded as an intermediary within ber States 12 are not least attributable to the meaning of Regulation No 123/85 if it those distribution systems. In those circum operates on behalf of a large number of con stances the opportunity for a consumer to sumers. It is quite natural for a professional acquire a motor vehicle in another Member intermediary to act for a large number of State becomes particularly important. consumers. The success of an undertaking such as Eco System shows moreover that there is considerable demand from consum ers for services of that type.

However, a consumer will only rarely be in a position to go to another Member State and make use of that opportunity. The Court of First Instance correctly points to the practi cal difficulties which hinder such activity. It is therefore of fundamental importance for a

In order to justify their view, the appellants refer to the opinion of the Advocate General 10 — The appellants state there that it is not disputed that the and the judgment of the Court of Justice in mere performance of an agency contract on a professional 13 basis is not an activity equivalent to that of a reseller; that the Binon case. The appellants conclude latter activity must, rather, first be defined. 11 — With regard to those advantages, cf. the fourth recital in the preamble to Regulation No 123/85. 12 — Cf. the press release of the Commission of 1 July 1993 con cerning motor vehicle prices in the EC (IP (93) 545). 13 — Case 243/83 [1985] ECR 2015.

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from that judgment that an intermediary presented no new arguments which could which acts for a large number of principals is cast doubt on that assessment, but have to be regarded as an independent undertak merely asserted that Eco System clearly ing. However, as the Court of First Instance ('manifestement") carries on an activity correctly decided, that case cannot be applied equivalent to that of a reseller. It would to the case in point. In the Binon case and in therefore be pointless to deal with the above- 1 similar cases 4the issue was whether Art mentioned circumstances in more detail. icle 85 was applicable to the relations between an undertaking and a commercial agent. According to the case-law, that is not so if the commercial agent is to be regarded as an auxiliary organ forming an integral part 15 of the principal's undertaking. That ques tion is wholly irrelevant to the case in point. Here the question is rather whether Eco Sys tem acted as an intermediary. That is to be answered in the affirmative. The fact that This same applies — although for another Eco System was able to attract a large num reason — to the appellants' argument that ber of customers for itself is irrelevant in that Eco System bears the risk arising out of any regard. change in the exchange rates. It is argued that in its brochure Eco System guarantees maxi mum prices for a period of three months from its appointment as agent. It can suffice for me to say here that in its judgment the Court of First Instance found that it had not been proven that Eco System bore the 17 32. The appellants claim that Eco System exchange rate risk. The appellants' objec assumed risks which corresponded to those tion therefore contests a finding of fact by of a reseller and were incompatible with the the Court of First Instance. That objection is role of a mere intermediary. It is only in the thus inadmissible (see the first sentence of reply that this objection is put in more con Article 168(a)(1) of the EC Treaty). crete terms. The appellants refer there to the fact that Eco System had to compensate its customers in the event of the loss of or dam age to the vehicle. In addition, Eco System is stated to to bear the risk of a customer becoming insolvent. The judgment of the Court of First Instance convincingly demon strates that those risks are in no way unusual 16 for an intermediary. The appellants have 33. The appellants also apparently wish to use as an argument in their favour the point made by the Court of First Instance that, 14 — Cf. in particular the judgment in Case 311/85 Vlaamse although the (short-term) credit granted to Reisbureaus [1987] ECR 3801, paragraph 20. the customers of Eco System was not an 15 — Judgment in Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Oth- inherent part of an agent's activities, that ers v Commission [1975] ECR 1663, paragraph 542; judg- ment in Case 311/85 Vlaamse Reisbureaus, cited above (footnote 14), paragraph 20. 16 — Paragraphs 52 and 54 of the contested judgment; cf. in that regard point 26 above. 17 — Paragraph 53 of the contested judgment; cf. point 26 above.

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nevertheless did not alter the legal nature of 35. However, that does not alter the fact that their business relationship. Such an argument consumers may have regarded Eco System as would be wrong. An obligation on the agent an undertaking which competed with deal initially to bear certain expenses itself and ers. That is also not contested by the Com then to require reimbursement from the mission. It argues instead that that fact principal for those expenses is — as a glance merely reflects the balance of interests at the legal systems of the individual Mem underlying Regulation No 123/85. The activ ber States shows — entirely compatible with ity of the professional intermediary is an the inherent nature of an agency contract essential guarantee for the consumer that he and the activity of an intermediary. may purchase a vehicle in another Member State.

34. The applicants claim that Eco System's commercial conduct made it appear in the eyes of consumers to be a reseller or in any case an undertaking which competed with resellers, and thereby caused confusion. In particular they refer to the fact that Eco Sys tem advertised its services, published its rates of remuneration, exhibited vehicles and granted credit to its customers.

I agree with the Commission in that respect. As I have already observed, the possibility for consumers to purchase a vehicle in another Member State through an intermedi ary would exist essentially only on paper, if they were not permitted to engage profes sional intermediaries. The activity of those undertakings as such is therefore entirely With regard to any confusion by consumers legitimate and also to be welcomed for the regarding Eco System's role, the Court of reasons already mentioned. It is therefore First Instance observed in its judgment that not apparent why such an undertaking there was only one brochure which could should be forbidden to advertise its services. give rise to objections. However, it held that Informing consumers about the possibilities the precise nature of Eco System's activity of purchasing a motor vehicle in another was clearly described in it. That appraisal of Member State at a lower price may be irritat the facts by the Court cannot be contested in ing for many manufacturers and authorized an appeal and the appellants also do not dealers; it is however in no way unlawful or appear to want to raise any objection in that incompatible with the role of an intermedi respect. ary.

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When Eco System advertises its services inter within the meaning of Article 3(11). The alia by exhibiting a particular motor vehicle, appellants have also expressed that view with that is one means of advertising which such most refreshing candour in their appeal. an intermediary may adopt. At least that is There can be no doubt that such a view is the case where the vehicle concerned is one incorrect. which Eco System has acquired for a cus tomer who has agreed to it being (tempor arily) put on show, which the Commission argued in the proceedings before the Court 18 of First Instance and which the appellants have not disputed in these proceedings.

38. Finally, the appellants' argument based on the wording of the fifth recital in the pre amble to Regulation No 123/85 must be 36. The appellants' contention that Eco Sys addressed. It is stated there that measures tem's intentions must also be taken into taken by the manufacturer or authorized account when appraising its activities must dealers with the object of protecting the similarly be considered in that context. Even selective distribution system are compatible if Eco System (as may be presumed) intends with the regulation, 'in particular' an obliga to compete with dealers through the services tion on the dealer to sell vehicles to a final offered by it, that would not alter the fact consumer using the services of an intermedi that Eco System performs the role of an ary only where the consumer has authorized intermediary which does not have to bear the intermediary to act as his agent. The the risks which are typical for a reseller. appellants conclude from the wording Article 3(11) does not require the intermedi adopted that the regulation permits the man ary to act for altruistic reasons. It is quite ufacturer to take measures other than those natural that manufacturers and authorized provided for in Article 3(11) to protect his dealers will consider its activities to consti distribution system. However, in order to be tute competition. compatible with the exemption, such protec tive measures must be authorized in the pro- visions of the regulation. However, of those provisions, only Article 3(11) deals with the question of the requirements which may be set for the activity of intermediaries. The appellants' view would therefore mean that a manufacturer could apply criteria for the 37. Ultimately the appellants' view would activity of intermediaries which are not men- amount to claiming that only a person who is acceptable to the manufacturers and its dealers could be regarded as an intermediary 19 — On page 16 of the appeal it is stated that the appraisal of the concept of activity equivalent to that of a reseller is one of an exclusively economic nature, which is a matter for the owner of the distribution network ('une appréciation dépendant exclusivement du contexte économique et qui 18 — Cf. paragraph 29 of the contested judgment. ' reste à l'appréciation du propriétaire du réseau ).

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tioned in that provision. That view should 39. The appeal must therefore be dismissed. not be adopted, if it is wished to avoid grant The decision as to costs follows from Art ing the manufacturers and their authorized icle 122, 118 and 69 of the Rules of Procedure dealers carte blanche to obstruct the activity of the Court of Justice. of intermediaries.

C — Conclusion

40. I therefore propose that the Court should dismiss the appeal and order the appellants to pay the costs of the proceedings.

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